Petition of Blackburn

No. 84-545

I N THE SUPREME COURT O F T I E STATE O F MONTANA

1985

I N THE MATTER OF THE P E T I T I O N OF
DONALD A. BLACKBURN a/k/a DONALD
BLACKBURN.

O R I G I N A L PROCEEDING:

COUNSEL O F RECORD:

For Petitioner:

S t e p h e n s L a w F i r m , B i l l i n g s , Montana

For R e s p o n d e n t :

Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
H a r o l d F. H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , M o n t a n a
M i c h a e l G. A l t e r o w i t z , C o u n t y A t t o r n e y , R e d L o d g e ,
Montana

Submitted: January 2 4 , 1 9 8 5

Decided: A p r i l 15, 1 9 8 5

Filed: -',; I.r
2 r
:
)

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Petitioner, Donald A. Blackburn, a/k/a Donald
Blackburn, requested an order staying judgment and
continuation of bond and applied for a writ of habeas corpus
from this Court on December 12, 1984. He alleged that
procedural errors had occurred, that the charge by the State
of Colorado was improper and that the documents accompanying
the demand for extradition were insufficient. This Court
issued an order staying judgment and granting a continuation
of bond on December 14, 1984. We now deny petitioner's
request to issue a writ of habeas corpus, and dismiss his
petition.
Petitioner was charged on November 4, 1983, by felony
complaint/information, filed in the State of Colorado, with
the crimes of theft, a felony (section 18-4-401, C.R.S. 1973,
as amended), and issuance of bad check, a misdemeanor,
(section 18-5-512, C.R.S. 1973, as amended). A warrant was
issued for his arrest.. About December 15, 1983, the
Sheriff's Office in Carbon County, Montana received several
documents, including a copy of the arrest warra.nt, from the
authoritites in Colorado. Petitioner had advised the sheriff
that he would surrender himself and appear when the warrant
was received. Petitioner did so on December 16, 1983. That
same day, he was arrested an6 appeared in justice court in
Carbon County to answer the Colorado arrest warrant and was
later released on his own recognizance.
On April 2, 1984, the Governor of the State of
Colorado, requested the Governor of the State of Montana have
the petitioner arrested and returned to Colorado to stand
trial. An application for requisition, the
information/complaint, the arrest warrant and a supporting
affidavit on probable cause accompanied the request for
extradition. The Governor of the State of Montana issued an
arrest warrant for petitioner in response to this request on
April 13, 1984. Petitioner was arrested in Yellowstone
County on April 23, 1984, pursuant to the Governor's warrant,
and again released on his own recognizance pending his filing
of a petition for writ of habeas corpus to resist
extradition. The matter was heard in the District Court of
the Thirteenth Judicial District of the State of Montana, in
and for the County of Yellowstone on July 30, 1984. That
court, on December 3, 1984, dismissed the petition for writ
of habeas corpus and ordered petitioner to surrender himself
to Colorado authorities within ten days.
On this, his second petition for writ of habeas corpus,
filed December 14, 1984, petitioner raises the following
contentions:
(1) The controversy forming the basis for Colorado's
request for extradition is a matter for civil litigation;
(2) the charging documents sent by the State of
Colorado do not conform to the requirements of section
46-30-211(2), MCA, in that there was no copy of any
authenticated information, and that the information, warrant
and supporting affidavit accompanying the request for
extradition contain conclusory allegations;
(3) sections 46-30-302, -303 and -304, MCA require that
a governor's warrant be issued within certain time limits and
the State of Montana did not adhere to these limits; and
(4) the petitioner was deprived of an opportunity to
have an investigation by the governor's office pursuant to
section 46-30-212, MCA.
 The scope of inquiry by a court in an extradition
proceeding is limited to:
"(a) whether the extradition documents on
their face are in order;
" (b) whether the petitioner ha.s been
charged with a crime in the demanding
state;
"(c) whether the petitioner is the person
named in the request for extradition; and
" (d) whether the petitioner is a
fugi.tive." Michigan v. Doran (1978), 439
U.S. 282, 289, 99 S.Ct. 530, 535, 58
L.Ed.2d 521, 527; cited in Crabtree v.
State (1980), 186 Mont. 340, 343, 607
P.2d 566, 567.
In Crabtree, the petitioner ha.d been charged with several
criminal non-support offenses, was facing extradition, and
sought relief by means of habeas corpus. He argued that
because the charges were based on failure to comply with a
child support order, the matter was civil, not criminal.
This Court found no merit in that argument and reversed the
lower court's decision to grant release of petitioner. We
agreed with the appellant State's argument that section
46-30-225, MCA and the Supreme Court's holding in Duran did
not permit inquiry into the underlying charges. Petitioner's
claim that the transaction at issue in Colorado constitutes a
civil matter goes to the underlying charges. We therefore
hold that this claim is beyond. the scope of a habeas corpus
proceeding in Montana, the asylum state, but note that
petitioner may pursue this claim in Colorado, the demanding
state. See e.g. Jacobsen v. State (Idaho 1978), 577 P.2d 24.
On the remaining issues, petitioner must support his
allegations beyond a reasonable doubt to overturn the
Governor's warrant. The Governor's warrant is prima facie
evidence of all the information recited in it including
identity, fugivity, and that the petitioner is properly
charged with a crime. In re the Matter of Hart (1978), 178
Mont. 225, 583 P.2d 411. This Court recognized this general
rule with respect to whether the accused was a fugitive in
State ex rel. Hart v. District Court (1971), 157 Mont. 287,
293, 485 P.2d 698, 702, stating:
"'The issuance of a warrant of rendition
by the Governor of the asylum state
raises a presumption that the accused is
the fugitive wanted. and it is sufficient
to justify his arrest, detention and
delivery to the demanding state. * * *
In order to rebut the presumption the
accused must prove beyond a reasonable
doubt either that he was not present in
the demanding state at the time of the
alleged offense or that he was not the
person named in the warrant ... 1 I1

(Citations omitted. )
Petitioner's second claim concerns the form of the
demand made by the State of Colorado. Section 46-30-211 (1),
PICA sets forth the requirements for the documents at issue as
follows:
1 No demand for the extradition of a
person charged with crime in another
state shall be recognized by the governor
unless in writing alleging that the
accused was present in the demanding
state at the time of the commission of
the alleged crime and that thereafter he
fled from the state, except in cases
arising under 46-30-204, and accompanied
by :
" (a) a copy of an indictment found or
information supported by affidavit in the
state having jurisdiction of the crime;
" (b) a copy of an affidavit made before a
magistrate there, together with a copy of
any warrant which was issued thereon; or
" (c) a copy of a judgment of conviction
or of a sentence imposed in execution
thereof, together with a statement by the
executive authority of the demanding
state that the person claimed has escaped
from confinement or has broken the terms
of his bail, probation, or parole."
 The Colorado Governor's demand was in writing. It
alleged that petitioner "is now to be found" in Montana, that
he was present in Colorado at the time of the alleged crimes
and that he fled to Montana. The demand was accompanied by
the compaint/information, the warrant and an affidavit made
before a magistrate. The demand clearly satisfies the
requirements of section 46-30-211(1), MCA.
Subsection (2) adds additional requirements. The
information or affidavit made before a magistrate must
substantially charge a crime under the laws of the demanding
state and the information or affidavit must be authenticated
by the governor of the demanding state. Petitioner claims
that the information and accompanying affidavit contain only
conclusory allegations and thus are insufficient.
"'The only safe rule is to abandon
entirely the standard to which the
indictment must conform, judged as a
criminal pleading, and consider only
whether it shows satisfactorily that the
fugitive has been in fact, however
[inartfully] charged with crime in the
state from which he has fled. ' Pierce v.
Creecy, 210 U.S. 387, 402, 28 S.Ct. 714,
718, 52 L.Ed. 1113 (1908). See also
Hogan v. OINeill, 255 U.S. 52, 55, 41
S.Ct. 222, 65 L.Ed. 497 (1921); Brown v.
Fitzgerald, 39 F.2d 870, 872 (9th Cir.
1930); United States ex rel. Jackson v.
Meyering, 54 F.2d 621, 622 (7th Cir.
1-931), cert. denied, 286 U.S. 542, 52
S.Ct. 498, 76 L.Ed. 1280 (1932); Person
v. Morrow, 108 F.2d 838, 840 (10th Cir.
1940)." Smith v. State of Idaho (1967),
373 F.2d 149, 158, cert. denied 388 U.S.
919, 87 S.Ct. 2139, 18 L.Ed.2d 1364.
In Smith, the accused argued that because the demanding
papers did not allege the victim died and was a human being
they were defective. The court held that the demanding
papers need not meet "common law technicalities of pleading"
and were sufficient i f they charged an offense. The defects
alleged in the case at bar are much more general.
Nevertheless, the long-standing, universally used rule stated
above applies. The demanding papers clearly accuse
petitioner of a crime and are sufficient under section
46-30-211 (2), MCA. The other requirement of sub-section (2),
that the information or affidavit be authenticated by the
governor of the demanding state is satisfied as well. The
document signed by the Governor of Colorado states on its
face that the complaint/information and affidavit are
certified by him as authentic in accordance with Colorado
law. We hold that the demand and accompanying documents
satisfy all the requirements of section 46-30-211, MCA.
In the third issue, petitioner ergues that Part 3 of
Chapter 30, Title 46, MCA imposes time limits on the issuance
of the governor's warrant. The plain meaning of these
statutes (adopted from the Uniform Criminal Extradition Act)
answers this contention. In Application of Simpson (Kan.App.
1978), 586 P.2d 1389, a complaint was filed in Finney County,
Kansas, alleging that petitioner was a fugitive from justice
from Missouri. A fugitive warrant was issued and petitioner
was admitted to bail. This transpired on September 15, 1977.
On October 15, 1977, the governor's warrant had not arrived
and a continuance to December 16, 1977 was granted. On
December 16, since the governor's warrant still had not been
received and more than ninety days has elapsed, the
proceedings in Finney County were dismissed, and petitioner
was released. Pursuant to the governor's warrant, which
arrived on December 21, 1977, the petitioner was arrested and
then petitioned for release. His contention that failure to
arrest under the governor's warrant within the ninety day
period operated as a bar to further extradition proceedings,
was found to be without merit by the Kansas court. The
Kansas court stated:
"It is obvious that the sections of the
Uniform Criminal Extradition Act referred
to are to prevent the unreasonably
lengthy periods of confinement of
fugitives pending consummation of
extradition proceedings by the demanding
state. They do not restrict the period
within which a governor's warrant may be
issued or executed to the ninety-day
period contained in those statutes."
(Citations omitted.) 586 P.2d at 1390.
We hold that the time limits in section 46-30-302 and -304
refer only to the length of detention permitted before an
accused person must be released from custody in the asylum
state. These sections do not require dismissal of
extradition proceedings for any supposed time limits on
issuance of the governor's warrant.
We further note, for the purpose of clarity, that these
sections have - applicability once a governor's warrant has
no
been issued. Once the Governor of the State of Montana
issued his warrant "all questions involving the prior arrest
and detention are rendered immaterial." 39 C.J.S. S115,
Habeas Corpus, p. 889. Case law also holds that even if the
previous detention was irregular, which is not the case here,
then the governor's warrant renders all such claims moot.
See Williams v. Leach (Colo. 1977), 572 P.2d 481; In Re Brown
(Mass. 1976), 346 N.E.2d 830. McCoy v. Cronin (Colo. 1975),
531 P.2d 379; State ex rel. Holmes v. Spice is. 1975), 229
N.W.2d 97; Applications of Oppenheimer (Ariz. 1964), 389 P.2d
696; Also, in Dilworth v. Leach (Colo. 1973), 515 P.2d 1130,
the Colorado Supreme Court agreed with the above cited
principle and stated:
". . .Neither reason nor justice
requires a change in the wel-1-settled
principle that the process involved in
 the initial arrest in the asylum state
becomes moot upon the issuance of the
governor's warrant." 515 P.2d at 1131.
Lastly, petitioner contends he was deprived of his
opportunity for an investigation by the governor under
section 46-30-212, MCA. This statute does not require the
accused be given notice of an investigation nor does it
require an investigation of the demand for extradition. It
simply gives the governor the discretion to check the
demanding papers. The legal rule for a century or more has
been that the executive of the asylum state may act upon the
requisition papers in absence of the accused and. without
notice to him. See e.g., Munsey v. Clou.gh (1905), 196 U.S.
364, 25 S.Ct. 282, 49 L.Ed. 515; Marbles v. Creecy (1909)~
215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92 and authorities cited
in 31 Am.Jur.2d, Extradition, p. 957 and 35 C.J.S. S15,

Extradition, p. 433. This rule stems from the duty of one
state to surrender a fugitive from justice on a valid
requisition from the governor of another state as fixed by
the United States Constitution.
"A person charged in any State with
treason, felony or other crime, who shall
flee from justice and be found in another
state, shall on demand of the executive
authority of the state from which he
,

fled, be delivered up, to be removed to
the state having jurisdiction. of the
crime.'I United States Constitution,
Article 4, S2.
Section 46-30-201, MCA also makes it the duty of the governor
to deliver fugitives to the demanding state. His
investigative authority and the scope of his discretion is
limited to determining that the person demanded is charged
with a crime and is a fugitive from justice and the adequacy
of the demand. The accused is entitled to a hearing with the
aid of counsel before a judge of a court of record on the
above issues (section 46-30-217, MCA), but there is - right
no
of the accused to have an investigation by or a hearing or
other appearance before the governor. The petitioner had a
hearing in District Court. His second hearing is the ca.se at
bar. We hold that petitioner was not entitled to either an
investigation or notice of an investigation conducted by the
governor when a demand for extradition is made by another
state.
Based on the foregoing:
IT IS HEREBY ORDERED:
I.. That the petition for writ of habeas corpus is
dismissed.
2. That petitioner Donald A. Blackburn, a/k/a Donald

Blackburn surrender himself to the authorities of Yellowstone
County, within five (5) days of the date of this order, to be
delivered to the duly authorized agent of the State of
Colorado within twenty (20) days to stand trial for the
charges which form the basis of these proceedings./. / " '
DATED this day of April, 1985. /
/

Justices